Supreme Myths

By Ed LazarusTuesday, May 26, 2009

Brooks Kraft / Corbis for TIME

Chief Justice John Roberts, center, and the Supreme Court

In 1987, when President Ronald Reagan nominated Judge Robert Bork to the Supreme Court, for a riveting moment the deep, raw-edged divisions in our legal culture dominated public discourse. Reagan had put forward the nation's leading conservative jurist in the hope of tilting a closely divided court sharply rightward for the next generation. The result was an all-out political melee for control of the institution that serves as the ultimate guardian of our constitutional rights. This political battle certainly saw its share of exaggerations and half-truths, as liberals sought to demonize the untelegenic Bork and conservatives tried to glorify him. But at the core of the Senate proceedings was a refreshing candor. The main reason Bork failed to win confirmation is that he was honest. True to his unyielding beliefs, Bork handed Senate Democrats the political ammo to defeat him by denying the existence of a constitutional "right to privacy" that most Americans had come to embrace as an inalienable right.

In the intervening decades, through seven more confirmation hearings, that high tide of candor has ebbed. The sharp controversies of the Bork hearings have become fuzzier, less fraught affairs both because later nominees learned the art of not answering dangerous questions and because we have become entranced by a set of confirmation myths giving us false comfort that a nominee's views are somehow less predictable, less divisive and even perhaps less important than the Bork hearings  and other inconvenient truths  might alarmingly suggest. In anticipation of the upcoming hearings for Sonia Sotomayor, a few of those anesthetizing myths are now ready for debunking.